HKSAR v. Wang Jinwei and Others

[English Translation – 英譯本]

CACC 224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 224 OF 2016

(ON APPEAL FROM DCCC 67 OF 2016)

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Before: Hon Yeung VP, Poon JA and Wilson Chan J in Court

Date of Hearing: 16 November 2017

Date of Judgment: 8 December 2017

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.The three appellants, Wang Jinwei (“Wang”), Hou Chunping (“Hou”) and Zhang Lianbing (“Zhang”) were charged with multiple offences before District Judge Douglas Yau (trial judge).

2.Charge (1), attempted theft, alleged that the three appellants attempted to steal from someone at the taxi stand outside Exit C2 of Hung Hom MTR Station on 20 November 2015.

3.Charges (2) and (7), “unlawful remaining in Hong Kong”, respectively alleged that Wang, having landed unlawfully in Hong Kong, remained in Hong Kong without the authority of the Director of Immigration on 20 November 2015 and 4 January 2015.

4.Charge (3), “unlawful remaining in Hong Kong”, alleged that Zhang, having landed unlawfully in Hong Kong, remained in Hong Kong without the authority of the Director of Immigration on 20 November 2015.

5.Charge (4), assaulting a police officer in the execution of his duty, alleged that Wang assaulted PC 15286, a police officer in the execution of his duty, in Nam Cheong MTR Station on 20 November 2015.

6.Charge (5), theft, alleged that Wang stole cash, personal identification documents and a Visa card, etc, being the property of Tse Sheung (transliteration), in Kowloon Tong MTR Station on 4 January 2015.  Charge (6), obtaining property by deception, alleged that Wang made a purchase at an Apple store with the Visa credit card stolen from Tse Sheung. 

7.Wang pleaded guilty to charges (2) and (7), “unlawful remaining in Hong Kong”, and Zhang also pleaded guilty to charge (3), “unlawful remaining in Hong Kong”.

8.All three appellants pleaded not guilty to the remaining charges.

9.After trial, the trial judge acquitted Wang of charge (5), ie theft, but convicted him of charges (1), (4) and (6).

10.The trial judge also convicted Hou and Zhang of charge (1).

11.On the five charges, Wang was sentenced to a total of 4 years’ imprisonment (21 months on charge (1), 16 months on charge (2), 2 weeks on charge (4), 2 years and 3 months on charge (6), and 15 months on charge (7); the 21 months on charge (1), the 16 months on charge (2), and 11 months of the sentences on charges (6) and (7) were ordered to run consecutively and the rest concurrently).

12.On charge (1), Hou was sentenced to 24 months’ imprisonment.

13.On charges (1) and (3) respectively, Zhang was sentenced to 21 months and 17 months’ imprisonment to run consecutively.  Zhang’s total sentence was one of 3 years and 2 months.

14.Wang was aggrieved by his convictions on charges (1) and (6) and his sentences on charges (1), (2), (6) and (7) and applied for leave to appeal against those convictions and sentences.  Thereafter, Wang abandoned the application for leave to appeal against his conviction on charge (6).  Accordingly, that application was dismissed.

15.Hou was aggrieved by his conviction and sentence on charge (1) and sought leave to appeal against that conviction and sentence.

16.Zhang was originally only aggrieved by his conviction on charge (1) but later also by his sentence on that charge, and filed separately an application for leave to appeal and an application for leave to appeal out of time, seeking leave to appeal against his conviction and sentence on charge (1).

17.On 3 March 2017, a single judge of the Court of Appeal made the following orders:

(1) leave be granted to Wang to appeal against his conviction on charge (1) but the application for leave to appeal against his conviction on charge (6) be refused; leave be also granted to him to appeal against his sentences on charges (1), (2), (6) and (7);

(2) leave be granted to Hou to appeal against his conviction and sentence on charge (1);

(3) leave be granted to Zhang to appeal against his conviction on charge (1); thereafter, on 3 August 2017, a single judge ordered his application for leave to appeal against his sentence out of time be heard by the Court of Appeal.

18.As such, we needed to deal with the applications to appeal against charge (1) filed by the three appellants and their applications to appeal against their sentences.  At the commencement of the hearing, Mr Chan, counsel for Wang, indicated that he would not pursue the appeals against the sentences. Accordingly, Wang’s appeals against his sentences on charges (1), (2), (6) and (7) were dismissed.  Hou did not appear in court to follow through with his appeal applications.  His appeals were also dismissed.  We only need to deal with Wang and Zhang’s appeals against their convictions on charge (1) and Zhang’s application for leave to appeal against his sentence out of time.

Prosecution’s allegations and evidence in respect of charge (1)

19.The prosecution alleged that on 20 November 2015, the three appellants attempted to “pickpocket” an unknown foreign male at the taxi stand outside Hung Hom MTR Station.  The evidence against the three appellants came mainly from the police officers who were monitoring them at the scene, namely Acting Inspector Mr Man, Sergeant 49859 and Woman Police Constable (“WPC”) 12335.

20.According to the testimonies of the three police officers, the three appellants wandered around the concourse of Hung Hom MTR Station, paying attention to others’ property from time to time and acting in a suspicious manner.  Therefore, the three police officers decided to monitor them, and at the same time requested other police officers to come to assist.

21.The police officers witnessed that after splitting up and meeting up multiple times in the station concourse, the three appellants walked outside the station and further wandered around.  Later, the trio walked to the taxi stand outside Exit C2 of the station together and lined up. At that time, two foreigners, one male and the other female, were in front of the three appellants.  The male was towing a suitcase on which a rucksack was placed.

22.WPC 12335 stated that she witnessed Wang press his left hand for 1 to 2 seconds on the zipper of the rucksack on the suitcase towed by the foreign male, but because the foreign male pulled his suitcase forward, Wang’s hand left the rucksack. Thereafter, the foreign male got into a taxi with his companion, but the three appellants did not stay in the queue for taxis or get into the taxi that arrived later; instead, they left the taxi stand and proceeded to another taxi stand approximately 30 to 40 metres away where they lingered for some time.  WPC12335 went on to say that the three appellants continued to size up the property of passers-by, and when another male queued up at the taxi stand, the three appellants, once again, queued up after him.  A minute later, they, once again, left the taxi stand and went into the concourse of Hung Hom Station, where they continued to size up others’ property.  According to WPC12335, after the train arrived, the three appellants elected not to board the train forthwith and instead waited until the moment right before the train doors were about to close and then stormed into the train compartment.  Police Constable (“PC”) 13884 managed to board the train together with the three appellants while the rest of the surveillance police officers waited for the next train.  They stayed in telephone contact with PC13884, and arrived later at Mong Kok East Station, while they continued to tail and monitor the three appellants.

23.A police officer who arrived at the scene upon receiving a report witnessed the three appellants alight from the train and exit through the gates at Mong Kok East Station, and thereafter walk in the direction of New Century Plaza and stay in the vicinity for about 15 minutes before first heading to the Mong Kok East Station Bus Terminus outside New Century Plaza and then re-entering the Station through the gates.

24.The three appellants boarded a train bound for Hung Hom, where they alighted and boarded another train bound for Tuen Mun.  When the train reached East Tsim Sha Tsui Station, the three appellants alighted, took a few steps and then returned to the train compartment.  Eventually, they got off at Nam Cheong Station.

25.When the three appellants were leaving Nam Cheong Station, they were pursued by PC13884 and PC53941.  Hou and Zhang were respectively intercepted and arrested on and at the bottom of an escalator by PC13884 and PC53941, whereas PC15286 shouted at Wang to stop when he was going up on an escalator after exiting through the gates at Exit C of Nam Cheong Station with an Octopus card.  Wang immediately threw the rucksack he had on him at PC15286, which landed on his upper left shoulder and chest.  Eventually, Wang was also arrested by PC15286.

Defence’s stance and evidence

26.The defence denied that the three appellants had any intent to steal the property of others.  The defence agreed that the three appellants had lined up outside Hung Hom MTR Station, intending to take a taxi to Sham Shui Po.  However, being worried that the fare would become excessive as a result of congestion and in order to avoid delay, they subsequently changed their minds and took an MTR train instead bound for Kowloon Tong, intending to interchange at Kowloon Tong Station for Sham Shui Po.  The defence denied that Wang had ever touched the rucksack of the foreign male in front in the queue, let alone any intent to steal.

27.Of the three appellants, only Wang elected to testify.  In addition to stating the above position, Wang explained why they had changed trains multiple times to go to various locations on the material day.  He stated that en route to Kowloon Tong Station to change trains for Sham Shui Po, Hou discovered the balance in his telephone card was insufficient.  As such, they decided to go first to New Century Plaza, but Hou re-entered through the gate in Mong Kok East Station without making any purchases.  However, they took a train in the opposite direction and ended up in Hung Hom.  They decided to interchange for Tuen Mun at Hung Hom Station, and intended to first alight at Tsim Sha Tsui Station to change to the Tsuen Wan Line but found it too far to walk to Tsim Sha Tsui Station to change trains shortly after alighting.  Thus, they decided to board the same train to go to Nam Cheong Station, from where they intended to walk to Sham Shui Po.

28.Wang went on to state that the trio had intended to leave as soon as chaos broke out all of a sudden after they alighted at Nam Cheong Station but they were eventually arrested by the police.

Findings by the trial judge

29.The trial judge found the police officers concerned to be honest and reliable witnesses.  The trial judge set out with great care the evidence of the parties, including the detailed whereabouts of the three appellants after they left the taxi stand outside the train station.

30.The trial judge also analysed Wang’s testimony with care.  He stressed that as two of the three appellants were illegal immigrants in Hong Kong, they should not have moved about in Hong Kong as if that would not be a problem.  The trial judge stressed that on all the circumstantial evidence, including that (1) the three appellants had already started sizing up the property of passengers around on the platform of Hung Hom Station; (2) they lined up at the taxi stand without taking a taxi; (3) having failed to steal from the foreigner, they once again sized up and approached another person towing a piece of luggage at another taxi stand nearby; and (4) they continually went in and out through the gates at various stations, travelled back and forth between stations, and returned to the same train compartment immediately after alighting. (sic)

31.The trial judge was of the view that the three appellant’s acts of returning to the same train compartment right after alighting were to confuse those tailing them, avoid giving away their whereabouts and shake off any tail.

32.The trial judge inferred that Wang had indeed pressed the zipper of the rucksack of the foreigner with his hand in an attempt to unzip it to see what could be stolen.  The trial judge was also of the view that on the basis of the acts of the three appellants before and after the material time, they participated in a joint enterprise.  Prior to making the above findings, the trial judge had carefully analysed the acts of the three appellants before and after the material time, and inferred that they were on the lookout together for suitable targets to steal from, and having zeroed in on a target, Wang would do the work while Hou and Zhang would act in co-ordination and assist Wang in committing the crime in the vicinity.

33.Thus, the trial judge convicted the three appellants of charge (1).

Grounds of appeal

34.Mr Chan submitted that the prosecution evidence was not adequate in showing that Wang did have an intent to steal the foreigner’s property.  He stressed that there was no evidence to show that Wang looked around when he came into contact with the foreigner’s backpack, and Wang’s contact with the rucksack, lasting only 1 to 2 seconds, could have been accidental, but the trial judge had failed to take this into consideration.  Mr Chan also submitted that the foreigner did not get into a taxi until 3 to 4 minutes after Wang had touched his rucksack, but in the meantime the three appellants took no other action, and the surveillance police officers did not even immediately make arrests, which was indicative of their uncertainty as to the occurrence of acts of attempted theft.

35.Mr Chan was of the view that given the doubts surrounding the incident, it was unsafe to have convicted Wang of charge (1).

36.Mr Cheung, on behalf of Zhang, also submitted that Wang’s acts were not more than preparatory, and the evidence did not suffice to prove that Zhang was acting in a joint enterprise with him.

37.As directed by the court, the parties made further submissions to the court on the following issue:

“whether the prosecution can support and/or strengthen their allegation against the appellants in respect of charge (1) with the post-offence conduct of the appellants.”

38.On the above issue, Mr Chan’s stance was that the post-offence conduct of the appellants bore no direct relevance to charge (1) but was only capable of showing their propensity to commit a crime, and the extremely prejudicial effect of such evidence outweighed its probative value.  Thus, the court should not have adopted the appellants’ post-offence conduct as evidence against them.

39.Mr Cheung stated in his written submissions that the prosecution might, where appropriate, adduce evidence by relying on the appellants’ post-offence conduct to prove the charge as such conduct was circumstantial evidence.  However, he was of the view that the appellants’ acts of continually boarding and alighting from trains and lingering in MTR stations along the way might not necessarily have any bearing on charge (1), and was only capable of showing the appellants had committed or intended to commit other crimes.

40.Mr Cheung agreed that the evidence that the appellants attempted to flee before being intercepted for inquiries might be relevant to charge (1), but he submitted at the same time that Zhang, being an illegal immigrant in Hong Kong, could have fled out of fear that his status as an illegal immigrant had been exposed and not because he realised that his commission of charge (1) had been uncovered.

41.Mr Brook SPP submitted on behalf of the respondent that the appellants’ post-offence conduct was capable of showing they were acting in a joint enterprise as well as proving their intent at the material time.  Mr Brook stressed that after their attempt to steal from a foreign male at the taxi stand failed, the appellants did proceed to another taxi stand some 30 to 40 metres away where they lined up behind another male, and during that time even sized up the property of passers-by.  Mr Brook was of the view that such evidence constituted “similar fact evidence”, capable of serving as evidence in support of charge (1).  However, in all fairness, he also conceded that the appellants’ strange and unreasonable acts of travelling to various places by MTR etc after the material time were not relevant to issues arising from charge (1).

Discussion

42.On the basis of the findings of fact by the trial judge, he unquestionably had an adequate basis to conclude that Wang did have an intent to steal from others.  After splitting up and meeting up multiple times outside the train station, the three appellants pretended they were lining up for a taxi behind a foreign male.  During that time, Wang pressed his hand for 1 to 2 seconds on the zipper of the rucksack on the suitcase the male was towing until the male pulled his suitcase forward, thereby causing his hand to leave the zipper of the rucksack.  Wang’s act had gone beyond preparation to commit a crime.  Had the male not pulled his suitcase forward, Wang would have been able to unzip the rucksack to steal the property therein.  It was simply unnecessary for Wang to do any other preparatory acts to achieve his purpose of stealing. 

43.We do not agree with Mr Chan and Mr Cheung’s submissions that Wang’s act was merely an act in preparation for theft and could not constitute an act of attempting to steal.  Mr Chan’s proposition that Wang could have accidentally touched the zipper of the rucksack of the male in front was not put forward at trial, much less supported by evidence.  Clearly, the trial judge had also rejected such a proposition.

44.Given the way the three appellants conducted themselves, including their acts and demeanour before the material time, in the absence of other credible evidence to explain, undermine or overturn the prosecution’s allegation, the inference that the three appellants had acted in concert was certainly reasonable and irresistible.  In response to our inquiries, Mr Cheung did not have anything sufficiently potent or in any way convincing to say to rebut such an inference.

45.We do not agree that Mr Chan and Mr Cheung had set out any convincing arguments in their respective written grounds of appeal. Such arguments do not constitute adequate reasons upon which the conviction should be overturned.

46.However, we have doubts as to whether the way the trial judge dealt with the conduct of the three appellants after committing charge (1) and made use of such post-offence conduct to support the charge was entirely correct.

47.A defendant’s conduct after the material time (post-offence conduct) can be evidence against him of his commission of the offence.  If the defendant’s post-offence conduct was closely connected with the offence he committed, it can even be regarded as part of the offence. Such post-offence conduct is certainly admissible as part of the evidence in support of the offence.  For instance, an armed bank robber, having committed robbery, runs out of the bank and boards a vehicle to flee the scene.  In addition, if a defendant was aware that he had committed an offence and engaged in certain post-offence conduct connected with and capable of showing he had indeed committed such offence, such conduct is admissible as evidence of his commission of the same.

48.Examples of a defendant’s post-offence conduct capable of constituting evidence of his guilt include:

(1) confessions made by a defendant. In R v Warickshall (1783) 1 Leach CC 263, the court, in unwavering terms, explained the justification for admitting confessions into evidence:

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers”

(2) deliberate lies by a defendant to conceal his crime (see the reasons and criteria for admission as evidence set out in R v Lucas (R) [1981] QB 720);

(3) a defendant choosing to flee the crime scene in order to evade his culpability; and

(4) deliberate modifications to the appearance by a defendant to avoid being recognized as the offender (R v Dupas [No 3] [2009] VSCA 202).

49.The above examples of a defendant’s post-offence conduct all show that he made an admission or engaged in other offence-related conduct out of an awareness of his commission of the offence and are capable of proving he had indeed committed the relevant offence. Therefore, such post-offence conduct is admissible as evidence against the charge he faces.

50.If the post-offence conduct of a defendant bears striking similarities to the offence he is alleged to have committed, such post-offence conduct can be admitted into evidence as similar fact evidence to support the charge against the defendant or certain relevant issues in the case (see Harris v DPP [1952] AC 694, DPP v P [1991] 2 AC 447, Makin v AG for New South Wales [1894] AC 57 PC).

51.A defendant’s post-offence conduct, including similar fact evidence, can be highly prejudicial to the defendant and prejudice the judge or the jury against him to a great extent. Therefore, to make use of a defendant’s post-offence conduct as evidence against him, the prosecution must put forward the basis on which such post-offence conduct is admitted, and the court also has to weigh up the probative value and prejudicial effect of such post-offence conduct before deciding whether to admit the same as evidence to support the charge.  To ensure a fair trial of a defendant, the court, in considering whether the defendant’s post-offence conduct should be admitted as evidence against him, must approach the matter with the utmost rigour.  The court must establish the basis for admitting such evidence and why such evidence is relevant to the charge and/or the issues arising therefrom.  Even if the post-offence conduct is relevant to the charge and/or the issues arising therefrom, the court is still required to strike a balance between the probative value of such evidence and its prejudicial effect on the defendant to ensure that the defendant’s right to a fair trial is not jeopardised.

52.We agree with the stance of Mr Brook that the fact that the three appellants, after committing the offence in the present case, proceeded to another taxi stand some 30 to 40 metres away and lined up behind another male could be similar fact evidence in support of charge (1).  However, the trial judge failed to consider the basis on which such evidence was admitted and also failed to compare the probative value of such evidence against the disadvantage and prejudice it would cause to the appellants in order to decide whether he should exercise his discretion to admit such similar fact evidence. Rather he simply regarded such evidence as general circumstantial evidence in admitting the same.

53.Further, as accepted by Mr Brook, the acts of the three appellants at various MTR stations and their acts of proceeding to various stations and boarding and alighting from trains multiple times, albeit suspicious, were not directly relevant to the issues subsequently arising from charge (1).  Such evidence was of no probative value whatsoever but would be to the prejudice of the appellants and prejudice the court against them because such evidence could be viewed as showing that the appellants had a propensity to commit similar offences. 

54.Mr Brook also accepted the reason that the appellants fled in Nam Cheong Station might be attributed to their status as persons unlawfully remaining in Hong Kong and their flight was not necessarily relevant to whether they had committed charge (1). 

55.Although the trial judge did not expressly state he relied on the appellants’ highly suspicious conduct as mentioned above in considering whether charge (1) was made out, he did set out such conduct in detail, showing he must have taken such suspicious conduct into consideration. In fact, the trial judge expressly stated that the suspicious conduct of the three appellants showed that they were looking around for targets to steal from.  The trial judge even regarded such suspicious conduct as part of the circumstantial evidence and drew an inference of guilt against the three appellants.

56.We would also like to point out that if the police had confirmed that the three appellants attempted to steal from the foreign male at the taxi stand, they could have arrested the trio forthwith without necessarily having to go on monitoring and tailing them for a prolonged period.

57.What the police did showed that they might not have been able to confirm whether the conduct of the three appellants constituted an offence and decided to go on monitoring and tailing them to obtain better evidence against them.  The above incident would also constitute a lurking doubt which would undermine the safety of the convictions.

58.Given the above, we are of the view that the decision to convict Wang and Zhang of charge (1) was unsafe. 

59.As such, we allow Wang’s and Zhang’s appeals in relation to charge (1) and quash the convictions and sentences thereon.

Sentence

60.With his conviction on charge (1) quashed, Wang is faced with sentences comprising 16 months’ imprisonment on charge (2), 2 weeks’ imprisonment on charge (4), 2 years and 3 months’ imprisonment on charge (6), and 15 months’ imprisonment on charge (7).

61.The trial judge ordered the 16-month term on charge (2) to run consecutively to 11 months of the sentences on charges (6) and (7).

62.We are of the view that it is more appropriate to order the sentences on charges (2), (4) and (7) to run concurrently but with 1 year to run consecutively to the 2 years and 3 months on charge (6).

63.Thus, Wang’s total sentence is reduced from 4 years to 3 years and 3 months.

64.Zhang is only required to serve the sentence of 17 months’ imprisonment on charge (3).

65.We substitute the sentences of Wang and Zhang as above.

Chan Siu-ming, instructed by Edward Lau, Wong & Lou, assigned by Legal Aid, for the first appellant (appeal against conviction)

The second appellant was unrepresented and absent (appeals against conviction and sentence)

Jeremy Cheung, instructed by Chan & Tsu, assigned by Legal Aid, for the third appellant (appeal against conviction and out-of-time appeal against sentence)

Edward Brook, Senior Public Prosecutor, of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.